HomeMy WebLinkAbout2010-10-25 10-363 ORDERCOUNCIL ACTION
Item No. 6 133
Date: October 25, 2010
Item/Subject: ORDER, Authorizing the City to Enter Into a Property Assessed Clean Energy
(PACE) Program Agreement with the Efficiency Maine Trust
Responsible Department: Legal
Commentary:
The City is considering adopting a Property Assessed Clean Energy (PACE) program. This
program would allow Bangor citizens the opportunity to obtain PACE loans for the purpose of
making their homes more energy efficient.
An ordinance allowing the PACE program is also on the agenda tonight. That ordinance
contemplates, and staff recommends, having the Efficiency Maine Trust administer the program.
Under this arrangement, Bangor's citizens will receive the benefits of the PACE program without
the City having to shoulder the administrative burden.
The Government Operations Committee recommends that the City enter into a contract with the
Efficiency Maine Trust for the purpose of administering Bangor's PACE program.
Department Head
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Manager's Comments:
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City Manager
Associated Information:
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Budget Approval:
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Legal Approval:
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City Solicitor
Introduced for
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Assigned to Councilor _ Wheeler October 25, 2010
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CITY OF BANGOR
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(TITLE.) ORDER, Authorizing the City to Enter Into a Property Assessed Clean Energy
(PACE) Program Agreement with the Efficiency Maine Trust
By the City Council of the City of Bangor.
ORDERED,
THAT the Interim City Manager is hereby authorized to sign a Property Assessed Clean Energy
(PACE) Program Agreement with the Efficiency Maine Trust, in a form as approved by the City
Solicitor or Assistant City Solicitor.
IN CITY COUNCIL
October 25, 2010
Motion Made and Seconded
Passed
CLERK ' �a
for Passage
(UTLEJ Authorizing the City to Enter Into a
_UoQerty Assessed Clean Energy (PACE) Program
Agreement with the Efficiency Maine Trust
Assigned -to Couneiior �t�
Memorandum
To: Government Operations Committee
From: Paul Nicklas, Assistant City Solicitor
Date: October 12, 2010
Re: PACE Contract
As this Committee is aware, the City is considering adopting a Property Assessed Clean Energy
(PACE) program. This program would allow Bangor citizens the opportunity to obtain PACE
loans for the purpose of making their homes more energy efficient.
An ordinance allowing the PACE program is set for first reading at tomorrow's Council meeting.
That ordinance contemplates, and staff recommends, having the Efficiency Maine Trust
administer the program. Under this arrangement, Bangor's citizens will receive the benefits of
the PACE program without the City having to shoulder the administrative burden.
To that end, staff asks the Committee to recommend to the City Council that the City enter into
a contract with the Efficiency Maine Trust for the purpose of administering Bangor's PACE
program, in a form as approved by the City Solicitor or Assistant City Solicitor.
6 N \
PROPERTY ASSESSED CLEAN ENERGY (PACE) ADMINISTRATION CONTRACT
THIS Property Assessed Clean Energy (PACE) Administration Contract (the "Contract")
is entered into this _ day of , 20_, by and between the City of Bangor, a
municipal corporation duly organized and existing under the laws of the State of Maine whose
mailing address is 73 Harlow Street, Bangor, ME 04401 (the "Municipality") and the Efficiency
Maine Trust, a legal entity and instrumentality of and a body corporate and politic under the
laws of the State of Maine (the "Trust'). The foregoing also are referred to herein collectively
as the "Parties" or singly as "Party."
WHEREAS, the 124th Maine Legislature has enacted Public Law 2009, Chapter 591, "An
Act to Increase the Affordability of Clean Energy for Homeowners and Businesses," also known
as "the Property Assessed Clean Energy Act" or "the PACE Act"; and
WHEREAS, that Act authorizes a municipality that has adopted a Property Assessed
Clean Energy ("PACE") Ordinance to establish a PACE Program so that owners of qualifying
property can access financing for energy saving improvements to their properties located in the
municipality, financed by funds awarded to the Efficiency Maine Trust under the Federal Energy
Efficiency and Conservation Block Grant (EECBG) Program and by other funds available for
this purpose, and to enter into a contract with the Trust to administer functions of its PACE
Program; and
WHEREAS, the Municipality has adopted a PACE Ordinance; and
WHEREAS, the Parties wish to establish their respective responsibilities in the
administration of the PACE Program.
WITNESSETH:
NOW, THEREFORE, for and in consideration of the covenants and conditions set forth
herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. DEFINITIONS. Capitalized terms used in this Contract shall have the meanings given
them in 35-A M.R.S.A. §10153 unless otherwise specified herein. In addition, these terms are
defined as follows:
1_1.. PACE Agreement. "Pace Agreement" means an agreement between the owner of
qualifying property and the Trust that authorizes the creation of a PACE Mortgage on qualifying
property and that is approved in writing by all owners of the qualifying property at the time of
the agreement, other than mortgage holders.
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1.2. PACE District. "PACE District" means the area within which the Municipality
establishes a PACE Program under this Contract, which is all of that area within the
Municipality's boundaries.
1_3. PACE Loan. "PACE Loan" means a loan made to the owner(s) of a Qualifying
Property for an Energy Saving Improvement.
2. TRUST'S RESPONSIBILITIES. The Trust shall, itself or through its authorized agents:
2_l .. Administration. Administer the functions of a PACE Program which
administration shall include, without limitation:
A. the Trust will enter into PACE Agreements with owners of Qualifying
Property in the Municipality's PACE District;
B. the Trust, or its agent, will create and record a Notice of the PACE
Agreement in the appropriate County Registry of Deeds to create a PACE
Mortgage;
C. the Trust, or its agent, will disburse the PACE Loan to the property owner;
D. the Trust, or its agent, will send PACE Assessment statements with
payment deadlines to the property owners;
E. the Trust, or its agent, will be responsible for collection of the PACE
Assessments;
F. the Trust, or its agent, will record any lien, if needed, due to nonpayment
of the PACE Assessment;
G. the Trust or its agent, promptly shall record the discharge of a PACE
mortgage upon full payment of the PACE loan;
H. the Trust, or its agent, will be responsible for management of federal grant
funds; and
I. the Trust, or its agent, will ensure the collection of data required to
quantify carbon savings and to facilitate access to and eligibility for voluntary
carbon markets, for federal grants for energy efficiency and for other incentive
programs that support Energy Saving Improvements.
2.2. Terms and Conditions. Pursuant to 35-A M.R.S.A. §10154, the Trust may
establish terms and conditions under which municipalities and property owners may participate
in a PACE Program established thereunder, and the Parties agree that they, the PACE Program
hereunder and this Contract are subject to those terms and conditions as amended from time -to -
time. Should the Municipality terminate its participation in the PACE program, those PACE
Loans already secured by PACE Mortgages as of the date of termination of this contract shall
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continue to be administered by the Trust. Should the City so elect, said PACE loans shall be
administered by the Trust under the terms and conditions prevailing before the terms and
conditions were amended.
3. MUNICIPALITY'S RESPONSIBILITIES.
3_l .. Education and Outreach Programs. The Municipality agrees to adopt and
implement an education and outreach program so that owners of property in the Municipality are
made aware of home energy saving opportunities, including the opportunity to finance Energy
Saving Improvements with a PACE Loan.
3.2. Conformity with Home Energy Savings Program. The Municipality agrees to
conform its PACE Program to the requirements contained in the Home Energy Savings Program.
3_3. Acceptance and Disbursement of Funds. The Municipality agrees to accept
PACE funds from the Trust and to disburse PACE funds back to the Trust as needed to satisfy
the conditions of the federal grants and to allow the Trust to fund and administer a uniform
system of municipal PACE Programs throughout the State, except as provided in Section 2.2 of
this contract.
3_4. Assistance and Cooperation. The Municipality agrees to cooperate with the Trust
in the administration of the Municipality's PACE Program, including but not limited to,
providing information about applicant properties including property tax payment and lien status,
taxable value of residential properties in town, and providing reasonable and necessary aid to the
Trust for required data collection, recordkeeping and reporting functions relative to the PACE
Program in the PACE District, and providing reasonable and necessary support to the Trust's
PACE loan, PACE Assessment, and billing and collection functions.
3_5. Conformity. If standards or rules and regulations are adopted by any State or
federal agency subsequent to the Municipality's adoption of a PACE Ordinance or participation
in a PACE Program and those standards or rules and regulations substantially conflict with the
Municipality's manner of participation in the PACE Program, the Municipality, should it desire
to continue its participation in the PACE Program, will be required to take necessary steps to
conform its participation to those standards or rules and regulations. Should the Municipality
terminate its participation in the PACE program, those PACE Loans already secured by PACE
Mortgages as of the date of termination of this contract shall continue to be administered by the
Trust. Should the Municipality so elect, said PACE loans shall be administered by the Trust
under the standards or rules and regulations prevailing before the standards or rules and
regulations substantially conflicting with this Ordinance were adopted.
4. TERM.
4_1. This Contract is for a period of three (3) years and shall automatically be renewed
for additional periods of three (3) years unless either Party provides the other with ninety (90)
days' advance written notice of intent not to renew this Contract.
TERMINATION.
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5_l. Either Party may terminate this Contract for convenience by providing the other
with ninety (90) days' advance written notice of termination. On and after the date of
termination, the Municipality no longer will have a PACE Program administered by the Trust
except for those PACE Loans already secured by PACE Mortgages as of the date of termination.
6. LIABILITY.
b_1. Notwithstanding any other provision of law to the contrary, municipal officers
and municipal officials, including, without limitation, tax assessors and tax collectors, are not
personally liable to the Trust or to any other person for claims, of whatever kind or nature, under
or related to a PACE Program established under this Contract, including, without limitation,
claims for or related to uncollected PACE Assessments.
6.2. Other than the fulfillment of its obligations specified in a PACE Agreement, the
Municipality has no liability to a property owner for or related to Energy Saving Improvements
financed under a PACE Program.
7. MISCELLANEOUS PROVISIONS
7_l. Notices. All notices, demands or other communications made pursuant to this
Contract shall be in writing and shall be sent by (i) registered or certified United States mail,
postage prepaid, (ii) by overnight courier, or (iii) by facsimile. Such notice shall be deemed
effective upon delivery addressed as follows:
To the Municipality:
To the Trust:
Robert Farrar
Interim City Manager
City of Bangor
73 Harlow Street
Bangor, ME 04401
Efficiency Maine Trust
101 Second Street
Hallowell, ME 04347
Attention:
7.2. Entire Agreement, Modifications. This Contract constitutes the entire agreement
of the Parties, and neither Party shall be bound by any statement or representation not contained
herein. Except as provided herein, this Contract cannot be changed, amended or modified,
except by another agreement in writing signed by all Parties hereto or by their respective
successors in interest.
7;3. Headings. The section headings contained herein are for convenience of reference
only and are not intended to define, limit, or describe the scope or interest of any provisions of
this Contract.
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7_4. Severability. If any section, term, covenant, or condition of this Contract or the
application thereto to any person or circumstances shall, to any extent be illegal, invalid or
unenforceable because of judicial construction, the remaining sections, terms, covenants, and
conditions of this Contract, or the application of such term, covenant, or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable shall not be
affected thereby, and each section, term, covenant, or condition of this Contract shall be valid
and be enforced to the fullest extent permitted by Law.
7.5. Governing Law, Remedies. This Contract shall be governed by and construed in
accordance with the laws of the State of Maine. Except as otherwise agreed by the Parties in
writing, all disputes, claims, counterclaims and other matters in question between the
Municipality and the Trust arising out of or relating to this Contract shall be decided by a Maine
court of competent jurisdiction.
7_6. Assignment; Successors and Assigns. This Contract may not be assigned by either
Party without the prior written consent of the other Party, which consent shall not be
unreasonably conditioned, delayed or withheld. This Contract shall benefit and be binding upon
the Parties hereto and their respective permitted successors and assigns.
7.7. Non -Waiver. Except as expressly provided in this Contract, the failure or waiver,
or successive failures or waivers on the part of either Party hereto, in the enforcement of any
paragraph or provision of this Agreement shall not render the same invalid nor impair the right of
either Party hereto, its successors or Contract permitted assigns, to enforce the same in the event
of any subsequent breach thereof.
IN WITNESS WHEREOF, the Parties hereto have caused this Property Assessed Clean Energy
(PACE) Administration Contract, to be executed by their duly authorized representatives as of
the date first set forth above.
MUNICIPALITY
By:
Signature
Print Name
Its: (Title)
EFFICIENCY MAINE TRUST
By:
Signature
Print Name
Its: (Title)